The Department of Veterans Affairs (VA) has proposed changes to the regulations governing its fiduciary program. Under the fiduciary program, veterans who are deemed incompetent to manage their own finances receive their VA benefits through a payee, called a "fiduciary."
The new regulations as presently proposed grant numerous new rights to VA claimants who are subject to the fiduciary program. (The comments period of the proposed regulations ended March 4, 2014.)
There are certain rights veterans technically have, according to VA policies that have not been codified into law. This has been an obstacle to veterans asserting their rights under this program, because they haven't been enforceable. The VA did finally establish a procedure in 2011 for a veteran to challenge the selection of a fiduciary. You can read about this process in Nolo’s article on the VA fiduciary program.
The new proposed rules for the fiduciary program will codify many of these rights. This is important, as veterans in the past have often not had any recourse when funds were misused or when they were denied access to funds, even for critical needs. These new rules are intended to begin addressing these problems.
Often VA claimants wait for many months or longer for the VA to appoint a fiduciary and provide them with access to their benefits. The proposed rules will allow for adult beneficiaries (age 18 and older) who are considered incompetent to receive their monthly benefits while the VA is completing the procedure to appoint a fiduciary. However, veterans will still have to wait for a fiduciary to be appointed to gain access to any lump-sum retroactive benefit.
The new rules will provide written notice of VA’s decision on a fiduciary appointment and any other matters affecting the veteran. This notice will also advise the veteran of the right to appeal some decisions, such as the right to appeal a fiduciary appointment to the Board of Veterans’ Appeals.
The new rules will grant the veteran the right to have the name and contact information (phone number, email address, and mailing address) for the appointed fiduciary, as well as the right to request funds for current, future, or past expenditures. In addition, the veteran will be entitled to receive a copy of the annual accounting that the fiduciary provides to the VA.
Should a VA fiduciary misuse funds, the new rules will provide the veteran with the right to receive notification of his or her right to ask the VA to reissue the benefits the fiduciary misused. The veteran will also be given the right to appeal a VA decision against reissuance.
Under the new rules, a veteran will have the right to request that a new fiduciary be appointed if the new appointee has “higher preference” (explained below) and would be unpaid. Likewise, a veteran could ask for a new fiduciary to be appointed if the current fiduciary is not effective or is not acting in the veteran's interest. Changing fiduciaries will require reasonable and credible information showing the issues with the existing fiduciary. Should the fiduciary be removed, the veteran will have the right to temporarily receive benefits directly until a new fiduciary is appointed.
The proposed rules create an order of preference for the VA to use in appointing a fiduciary. The VA will be required to give preference to the veteran’s choice of a fiduciary, whether that be a family member or other volunteer fiduciary. Only when no person is available to the veteran to serve as a volunteer fiduciary will the VA be authorized to appoint a paid fiduciary.
Under the new rules, parents and spouses will not be required to have a face-to-face interview at the field office before becoming a fiduciary, nor will they be required to pass a credit check or criminal background check. The rules define a parent as a natural or adoptive parent or a stepparent.
In the past, many family members have been rejected as fiduciaries by the VA due to credit or criminal history issues, so this new regulation may help veterans to have their fiduciary of choice. Family members will still be required to submit an annual accounting to the VA showing how the funds were used. While this will be a burden on caregivers, it will also protect veterans in certain situations.
The proposed regulations create a path for veterans who have been deemed incompetent to manage their own funds to reestablish their competence, and their financial independence, through a supervised direct payment program. After a year of managing funds through the direct supervision program the veteran, will be reevaluated for competency. If, after a year in the program, a vet is still considered incompetent, the program can be extended for another full year, but a fiduciary will have to be appointed.
The program provides budgeting help, creating a report to track spending, and other help and instructions. To demonstrate financial competence, a veteran will need to be knowledgeable about monthly income and monthly expenses and show he or she can pay monthly bills on time and save money.
The VA has not yet indicated when it may formally publish these proposed rules so that they become law, but it is expected that they will do so soon.